Citation Nr: 1012876
Decision Date: 04/06/10 Archive Date: 04/14/10
DOCKET NO. 06-15 888 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to service connection for a lower back
disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
K. Haddock, Associate Counsel
INTRODUCTION
The Veteran had active naval service from October 1981 to
March 1998 and from April 2003 to August 2003.
This case comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2005 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina.
The Veteran was scheduled for a videoconference hearing
before the Board in January 2008. In a January 2008
statement, the Veteran withdrew his request for a
videoconference hearing before the Board and has not
requested that the hearing be rescheduled. Therefore, his
request for a Board hearing is deemed to be withdrawn.
In March 2010 the Veteran's representative provided VA with
an informal hearing presentation in support of the Veteran's
appeal. The Veteran's representative included among the
issues before the Board, the issue of entitlement to service
connection for a cervical spine injury. After a review of
the record, the Board notes that there is no timely Notice
of Disagreement or Substantive Appeal on file for this issue
and this issue has not been certified as on appeal to the
Board by the originating agency. The Board has limited its
consideration accordingly.
FINDING OF FACT
The Veteran has not submitted a timely substantive appeal
with respect to the issue of entitlement to service
connection for a lower back disability.
CONCLUSION OF LAW
The Board does not have appellate jurisdiction with respect
to the issue of entitlement to service connection for a
lower back disability. 38 U.S.C.A. §§ 7105(a), 7108 (West
2002); 38 C.F.R. §§ 20.200, 20.202 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
An appeal consists of a timely filed Notice of Disagreement
in writing, and after a Statement of the Case has been
furnished, a timely filed Substantive Appeal. 38 U.S.C.A.
§ 7105(a); 38 C.F.R. § 20.200. The Board may dismiss an
appeal which fails to allege a specific error of fact of law
in the determination being appealed. 38 U.S.C.A. § 7108;
38 C.F.R. § 20.202.
The record reflects that in an August 2005 rating decision,
the Veteran was denied entitlement to service connection for
a lower back injury. In his September 2005 Notice of
Disagreement, the Veteran stated that he had requested
entitlement to service connection for a thoracic spine
disability. In a March 2006 Statement of the Case, the
denial of entitlement to service connection for a lower back
disability was continued. In his May 2006 Substantive
Appeal, the Veteran again specified that he was seeking
service connection for a thoracic spine disability rather
than a lower back disability.
In September 2006, the Veteran was afforded a VA examination
of his spine. In the examination report, the examiner
reported that the examination request from the originating
agency was for a thoracic and lumbar spine disability
evaluation, but at the time of the examination the Veteran
reported that he did not have a lumbar spine disability and
that he just wanted to be evaluated for his thoracic spine
disability.
In a November 2006 Decision Review Officer (DRO) decision,
the Veteran was granted entitlement to service connection
for a thoracic spine disability. There is no evidence of
record that the Veteran has appealed the disability
evaluation assigned in the DRO decision. Additionally, the
Veteran withdrew his request for a videoconference hearing
before the Board in January 2008.
As a result, the Board does not have jurisdiction to decide
the issue of entitlement to service connection for a lower
back disability. Accordingly, it will be dismissed.
ORDER
The appeal for entitlement to service connection for a lower
back disability is dismissed.
____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs